Emery v. Guadalupe Mason

McKinstry, J. —The appellant contends the facts of this case resemble those in the case of Harris v. Hillegass, 54 Cal. 463. But in Harris v. Hillegass, the court below had sustained a demurrer to the complaint, and this court held the complaint stated a cause of action. In the case at bar the superior court overruled a demurrer to the complaint, and found upon evidence adversely to allegations of the complaint which were denied by the answer.

The complaint avers that in consideration of money, provisions, and tools furnished by plaintiff to Charles G. Mason, under the prospecting contract—alleged in the complaint—between plaintiff and said Mason, and in pursuance of said contract, Charles G. Mason “ entered upon and made the said prospecting tour, and from said money, tools, and provisions made and received for the common benefit and advantage of himself and said Emery a large amount of issues, profits, and proceeds, and outgrowth thereof, and the profits derived therefrom, for the equal, common profit, benefit, and advantage of said Mason and said Emery, and in pursuance of the undertaking and adventure aforesaid, bought, located, and acquired valuable mines of gold and silver, and other property, real and personal, and large sums of money, as proceeds, issues, and profits thereof, of the exact character, value, or location of which, except as hereinafter stated, plaintiff is ignorant.”

The superior court found: —

“2. That in pursuance of said agreement the said plaintiff, on or about said last-named date, at said San Francisco, furnished and delivered to the said Mason the sum of $342 in money, and tools of the value of $45.98, and provisions of the value of $112.02; and the said Mason, in consideration thereof, entered upon said prospecting tour, and proceeded to said Santa Lucia Mountains, and prospected said marble quarry, and found the same valueless, and thereafter continued [224]upon said prospecting tour without discovering, acquiring, or locating any mines or mine until about the 20th of October, 1883, when he arrived at San Luis Obispo, when he left the said tools and abandoned the said prospecting tour, and proceeded thence to Arizona Territory, when, after living a short time by hunting, he settled upon the Gila River, in Pinal County, Arizona Territory, where he took up a pre-emption claim and engaged in farming,—an occupation which he exclusively pursued, with a life of great hardship, poverty, and danger, for some eight or ten years, until about the 22d of March, 1875, when the Silver King mine, in Pinal County, Arizona Territory, was discovered by one of his neighbors, Isaac Copeland, and was located by Isaac Copeland, B. W. Reagan, W. H. Long, and said Charles G. Mason.